For now, Ohio cannot perform its scheduled executions: Judge Merz, a federal magistrate judge, has ruled against its proposed lethal injection protocol. The ruling has been appealed by the state.

In his federal court testimony Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC), stated* he had adopted Ohio’s current protocol because he believed the US Supreme Court had approved it in the 2015 Glossip v. Gross ruling out of Oklahoma. Merz explains that Mohr’s belief was erroneous: Ohio must start afresh with assessing the protocol.

Much of the testimony heard by the court was about midazolam, the first drug in the Ohio protocol. Five experts testified about its likely effects, often giving conflicting opinions. Merz notes that all of them agreed midazolam would prevent the condemned inmate from forming memories of his pain. The judge does not find this a convincing argument for approving the drug: “That does not mean the pain was not inflicted and the Supreme Court has yet to tell us that inflicted pain that is not remembered does not count as severe pain for Eighth Amendment purposes.”**

Noting also that several states, including Ohio, have abandoned midazolam after it caused problems with executions, Merz concludes:*** “[U]se of midazolam as the first drug in Ohio’s present three-drug protocol will create a “substantial risk of serious harm” or an ”objectively intolerable risk of harm”.

Merz also finds that Ohio must not use potassium chloride or a paralytic agent, because the state told a court previously that it would not use such drugs during executions.****

Jeffrey Wogenstahl is not in immediate danger of execution, despite his name still appearing on the ODCR scheduled execution list. Jeff’s execution date has been stayed by the Ohio Supreme Court, which has also allowed him to follow a direct appeals process if necessary (read more here).

Nonetheless, Merz’s ruling is appreciated by Jeff: he will be spared the horror of seeing his fellow inmates being moved prior to execution. We welcome this news.